, 'C.UUUNQT01l1 fl. POTTER,

'167

At Law.' , On motion,for reargumentofamotion to,amend the answer by setting up as a defense a cla.usein ,the application for insurance that tbe vessel on which the policy sued on was issued was to be commanded, by a eertilled captain. Wing, Shoudy &: Putnam, for plaintiff. Lester W. Olark, for defendant.
LACOMBE, J. 1. Upon the trial it was held that the clause in the applicl;i.tion, fQr, insurance on ,the Altavelia could not be considered a warranty because it was not carried into the' policy. The defendant's contention then was (and still is) that, the policy being an open one, in fact completed as to the Altavelia until the application for that partieu1fl.r vessel was put in, the application is to be considered a part of th$ policy or Contract of obligation between the parties. If the contention of 'the defendant is sound, it will a\"ail him under hig original answer, Whi'cih contains a,denial that the plaintiff has duly fulfilled all the conditions Of the policy. , 2. If the clause warranting the Altavelia to commanded by a eer':' tified captain, which is in theapplicatibn forinsurance on that vessel, operated as an inducement to accept the risk, tM fact warriuited being deeihedby the insurer Dlatenal to the risk, the defendant should in all fairness be allowed to avail of such a defense. But ,he is at liberty to,do so now" nnder the amendment made since the trial. 'S. If the statement as to the certificate of the captain was one not material to theris1l;:, and of no effect as an inducement to the insurer to accept the plaintiff'sofIer,-in other words, if it is an after-thought,.:...then the defendant should' not now be allowed to set it up as a flat bar in a case where as to representation gives him every opportunity to prove in' defense wbatevet fact he selected for a defense when he made hi,s contract. ' ,

CARRINGTON ". POTTER

et ale

(Gifocuit Court. E. D. MiI,ouri. E. D. February 18, 1889.)
L

EVIDEl'ICB":-])OOUMENTARy-PUBLIO RECORDS.

In the absence qf stlitute authoriziD,g entries In a book termed the "Record of the Register of Swamp Lands," relating to the dil!position of such lands Dot admissible in belonging to a county, certified copies of such eDtries evidence as public records. ..

.. 8.u£E-DEED"':-SEAL.

. Acertjfi\ld copy of a deed. though it the grantor's 'Signature, when theattestatioD clause recites that the deed was executed "UDder the hand aDd sel11" of the grantor. Following McOo1l v. (JaB:_idll,9 s. W. .', .. , .. ,J1pBLlC laNDs.... BY DlIiED Ol1'COIDlISSlONlj:R., Under gess. 'Mo. 1868, p. 67, declanng that deeds for county swamp , '.landi, theretofore executed by co.mmissioners, shoUld'De'" deemed and held to

REPORTE.R,

vol. 37.

be valid and legal," and vest in the purchasers "all right, title, and)nterest of the counties in such ),ands, as fully as if * * * patents or deeds had been granted by the governor, " who was the proper officer to execute deeds for such lands, such commissioner's deeds are, equally with a patent, prima facil/ evidence of a prior purchase in conformity with law, and a payment of the purchase price at the established rate.

Ejectment by Charles S. Carrington against James M. Potter et ai. W. H. Clopton, for plaintiff. .Johnson &: Lentz, for defendants. THAYER;,J. This is an ejeetmentsuit involving the title to 320 acres of land in Butler county, Mo. The county is the common source of title, the lands in question being a pad of those originally ceded to the county by the state as swamp land,s, under the acts of March. 3, 1851, and February 23, 1853. Laws Mo.. 1851, p. 238; Sess. Laws Mo. 1853, p. 108.. Plaintiff derives title under a deed executed by Daniel L. Jennings on October 4,1858, as commissioner of Butler county, appointed to make <lonveyances to purchasers of such swamp lands as had been fully paid for. Defendants are in possession under a patent for the same lands granted by the county to J. M. Potter on March 9, 1887. The opinion which I have formed on the various questions discussed by counsel may be stated as follows: The objection made by defendants' attorney to the admission of the certified copies of the entries said to be contained in a book now in the custody of the clerk of the county <lourt of Butler county, Mo., and variously termed the "Record of the Register of Swamp Lands," and the "Recorder's Register of Swamp Lands of Butler County, Missouri," in my judgment, is well taken. So far as was shown, there was no law in force at the time the entries in question purport to have 1;>een made, requiring either the register or receiver to make such entries, or to keep any SU9h book as that. from which the entries are said to have been copied. The book is not'a public record, and <lopies of entries therein, certified by the clerk aforesaid, are not admissible in evidence. If the entries in question are admissible on any other ground,-for instance, as memoranda made in the course of the discharge of official duty,-the requisite proof was not to authorize their admission 0:1 that ground. The certified copies oithe entries aforesaid are accordinglyrej ected. The objection made to the 'introduction of the deed of Daniel L. Jennings, as commissioner, to Mary Tanner, on the ground that it was not executed under seal, is fully met and overcome by a late decision of the supreme court of this state, not as yet reported in the published volumes of decisions, to-wit, McCoy v. Cassidy, 9 S. W. Rep. 926. The case holds that, even though a certified copy of a deed offered in evidence shows no seal or scrawl opposite the grantor's signature, yet, if in the attestation dause the deed purports to be "signed and sealed" by the grantor, a presumption arises that the original deed was duly sealed as the law requires. The case of Hamilton v.Boyye..'I8, 63 Mo. 233, is thereby expressly overruled. The certified copy of the Jeu?ings deed that was offered (the

At Law.

OARRINGTON tI·. POTTER.

'169

original not been produced) in the attestation clause recites that it was executed'" under the hand and seal [of the grantor] as commissioner aforesaid." Under the authority cited, that recital raises the pre-. sumption that the original was duly sealed. It is no doubt true, as claimed by defendants' counsel, that the county court of Butler county had no authority to appoint a commissioner to make conveyancl;ls of its swamplands. The act of March 3, 1851,supra, made it the duty of the governor to issue patenla for such lands, when paid for. That point is expressly decided in Sturgeon v. Hampton, 88 Mo. 212, and is clearly intimated in previous cases, to-wit, Barton Co. v. Walser, 47 Mo. 194; Wilcoxon v. Osborn,77 Mo. 627. In actions of this character the decisions of the highest court in the state, on points of the kind last mentioned, are controlling authority in the federal. courts. Therefore it must be regarded as settled that the Jennings' deed, standing by itself. conveyed no title to the lands in controverlly. But it was because many such invalid deeds had been made throughout the state, by reason of a false construction of the various acts relating to swamp lands, that the curative act of March 26, 1868. was passed. Sess. Laws Mo. 1868, p. 67, It has been heretofore held, in effect, that the main purpose of the act of 1868 was to validate swamp-land deeds that had been theretofore executed by commissioners appoinwd for that purpose. Sturgeon v. Hampton, supraj Barton Co. v. Walser, supraj Wilcoxon v.Osborn, supra. 'fhe act of 1868 in broad terms declared that such commissioners' deeds "shall be deemed and held to be valid and legal, * * * and shall vest in the purchaser of any such lands all right, title, or interest of counties in said lands, as fully as if B&id patentis or deeds had been granted by the governor of the state," whose duty itwas, under the act of March 3,1851, to grant patents for swamp lands when sold by the vliLrious counties. It is insisted, however, by defendants' counsel, that the act of March 26, 1868, did not validate the Jennings deed, for the reason that there is no proof that the granteein that deed ever paid Butler county for the lands conveyed to her. It is furthermore urged that, even if there is some proof of payment, it is not shQwn that the grantee paid the price therefor established by law, and that it dpes not appear that the sale of the lands in question was conducted in conformity with law. The exceptions so taken to the deed clearly assume that it was plaintiff's duty, before offering the commissioner's deed, to show that the sale was regularly conducted; that the purchase price was paid in full, according to the rate established by law for the sale of swamp lands; and that, until such proof was furnished, the commissioner's deed was not brought within the operation of the act of 1868. This, in my judgment, is a false assumption as to the burden of proof in this class of cases. Certainly the plaintiff would not have been required to make such pro<;lf if he had produced a patent for the lands granted by the governor. A patent granted by the governor would have been prima facie sufficient to divest the title of the county, without proof of an antecedent purchase, payment, etc. Now, the act of 1868 in terms gives to a commissioner's deed the force and effect of a patent issued by the govv.o'1F.no.14-49

FEDER.A.L'l'tEPORTEa,vol. 87.

ettJot, 'when i,t is shown to relate to swamplands. That was the purposedf ......tovalidate such deeds by giving them the force and effect bf patents; and the act' is not void bn account of its retrospective character, as was held in Barten 00. v.Walser, ffUpra. The stipulation offered in the present case admitted that the lands in controversy were swarilp lalids, and that they had been patented to the state by the general government, and that the state had furnished lists and plats thereof to the county. Plaintiff proved that Daniel L. Jennings, on May 15, 1858, had been duly appointed commissioner of Butler county. to make cOIlveyances in the name of the county to purchasers of swamp lands. The commissioner's deed,reciting full payment for the lands, was then read. This proof, with the aid of the act of 1868, made out a prima facie caSe. It' placed the plaintiff in the same attitude he would have oocu;' pied if he had bffered a patent signed by the governor. It· is very true that in the caSe of Barwn; Co. v, Walser it was held that if there was any fraud orotherinfirmity attending a sale of swamp lands, which would render thesale'void, such fact might be shown to defeat a· commissioner'.sdeed i nohHtIlstanding the curative act of 1868. In the case of Sturgebn v. Hampton, 88 Mo. 215, ffUpra,it was also held to be the purpose of the act of 1868 tb make valid, deeds executed by officers who had no authority' to make deeds. It was further said that the act was, not intended to validate sales made in violation of law, or to make valid void sale,. or to make' valid a deed, when the purchaser was not olie::But when a commissioner's deed is produced,and the· officer's authority from the c(Hmty to make deeds of its <?lass is established, and' :the lands are shown to be swamp lands, as in the present case, uponwh6inrests the burden: of showing that the sale was void for Violation of law, and that the purchaser was not in fact entitled to'a deed, although county, actingb:y its commissioner, has elected· to .execute one? ManIfestly the· person who alleges facts calculated to Impeach the conveyance, and take it out of the operation of the act,ought to prove the·facfs so alleged. Tho construction which defendants' attorapparently place on the aef of 186.8, in effect adds a proviso therete> that commissiOners' deeds shall only be deemed valid' in the event that the grantee therein , or tbose claiming under him" first prove that· they made purchaSes' iIi strict conformity with law, and have paid the purchase price in full, at the established rate. The act itself contains no such proviso, and was· obviolisly intended to cast the burden of proving such facts on those who contested the validity of such deeds; .When the plaintiff made proof of Jtmnings' authority as aforesaid·, antI offered the· commissioner's deed ·and other derivative deeds, which are not assailed, ' lie· made out aprimajaC'te case. .Defendants, on their part, introduced :rio testimony to impeach the Jennings deed. The only evidence having such a tendency was contained in the certified copies of the entriesa1'>ove mentioned, which mustbe·i'ejected; oti. defendants' motion, for the rElll.s-ari' before given. .. The proof respe'cting the ·damage 'done to thidand 'by the removal of timber· thereon by the defendants,is not very satisfactory,and the1'e is'
I . ' , · ' .

SHAMPE.\O·".<X>NNECT1<iJUT lUVERl.UMBER

co.

7'11

no levidence as; to .the rental I .assess· tpe damages'attbe: 811m of $500, .and the value of the rentals at a nominal sum, to.wit, $1'per month. Judgment will be entered against all of the defendants for P0sof the premises, and against Potter for the damages,. as he pears to be the one who was instrumental in selling the. timber.

SRAMPEAU 'lI. CoNNECTICUT RIvER. LUMBER

Co.

( Circuit "Court, D. Vermont. March 18. 1889.)
i.WRITs-SERVICE OF PROCESS--PLEAS

A plea in abatement in anaetion commenced hi the state court agatnsta foreign .corporation sbowed that .the writ was notpJ'operly served as a writ of summons. but the. writ and return showed that, the writ issued and was served as a writ ofatta:chmellt, Hetd that, 3S the plea did not deny thatthe person with whom the copy' was left was defendant's· known agent or:t\ttor· ney" or was le,ft with)lilll at the place of attllchment, it was bad, such servIce bemg authorIzed by the state laws, (R.·L: Vt. § 881.) ,1'.",1 Such service is sufficient to hold the property, though not to support a per· sonal judgment, and a motion to dismiss should be denied.

2. SAME-ATTAClIMENT-SUFFICIENCY.

At Law. On demurrer to plea in abatement and motion to dismiss. Action by William ShaJllpeau against the Connecticut River Lumber Company. . E. W. for plaintiff. H. a. Ide, for defendant. WHEELER, J. This cause was brougbt in tbe state'court, wbere tbe defendant pleaded in abatement, and moved to dismiss for defective service, and then removed it to this court, being a foreign corporation. The plea alleges that the writ was served by leaving an attested copy of the return thereon "with one Edward W. Lawler;" and that Lawler was not a..clerkor other officer, or a stockholder, of the defendant; and that there was no other service or acceptance or waiverofservice.The plaintiff has demurred to the plea, and hearing has been had on the plea and motion. . . The plea well shows that the writ was not served in any lawful Dianner as a writ of summons. But the writ and return thereon are referred to in the plea, and show that the writ iss.ned and was served asa writ of attachment. The defendant was not and conld not be an inhabitant ofthestate. Hall v. Railroad Co., 28Vt. 401; F'illi v. Railroad Co., 37 lfed. In such case the writ could be served by leaving a copy with the defendant's known agent or attorney, and for want thereof at the place where .the goods or chattels were attached. R. L. Vt. § 881. The plea does allege that Lawler was not such agent or attorney, nor that the copy left with him at the. place of attachment. When !lo cause is from 11 state court, to this CQur,t it is to proceed as. if